Waters of the United States – Environmental Protection Agency and Army Corps of Engineers
2015 Final Rule: The EPA and the Army Corps expanded the definition of U.S. waters beyond those that are “navigable” – in some cases, to even small depressions or farm ponds that do not impair the flow of rivers. Despite state jurisdiction, this rule imposed federal mandates for water quality levels in these local waters or land uses. What’s most troublesome is that the agencies issued the rule without doing required Regulatory Flexibility Act processes. The agencies claimed that the rule will have no significant impact on small businesses even though the rule will clearly restrict the ability of small businesses to expand or develop their land and decrease land value.
Trump Administration Review: Acting on an executive order signed by the president in February 2017, the agencies announced a two-step process to review the rule. In the first step, the agencies proposed to rescind the 2015 final rule. The second step, which will occur upon finalization of the first step, will be to propose a new definition of Waters of the United States. In June 2018, EPA proposed Repeal of the 2015 Rule (Step 1). In February 2019, EPA proposed revised definition of “waters of the United States” (WOTUS) that clarifies federal authority under the Clean Water Act (Step 2). In September 2019, EPA issued a final (Step 1) rule that formally rescinds the 2015 Obama Administration WOTUS rule.
2018 Proposed Rule (Step 1)
2019 Proposed Rule (Step 2)
Clean Power Plan – Environmental Protection Agency
2015 Final Rule: EPA finalized rules that imposed on states carbon emissions limits for electricity production that will force them to reduce coal-powered generation that now provides the vast bulk of America’s power. EPA required the states to increase the percentage of power they generate from alternative sources, like wind and solar, which are less reliable and more expensive. NFIB is concerned about the rules’ impact on affordable electricity, a significant cost for small businesses.
Trump Administration Review: Acting on an executive order signed by the president in March 2017, EPA announced a review of the Clean Power Plan. A proposed rule is currently under White House review.
2014 Proposed Rule
Overtime – Department of Labor’s Wage and Hour Division
2016 Final Rule: DOL expanded the number of salaried workers eligible for overtime pay by increasing the threshold below which employees must earn overtime for hours worked beyond 40 in a week. The threshold nearly doubled to $47,476, or $913 per week. While touted as a way to give more wages to workers, in reality business owners are likely to limit workers to 40 hours a week and scale back managerial staff, so workers will not realize higher pay. The rule also increased the threshold automatically every three years based on inflation.
Trump Administration Review: Following an injunction that prevented the rule from going into effect in December 2016, DOL published a Request for Information in July 2017. In March 2019, DOL issued a proposed rule that would formally rescind the 2016 rule and raise the salary threshold from $455 per week ($23,660 per year) to $679 per week ($35,308 per year). DOL has indicated it intends to issue a final rule by December 2019. If it goes into effect, the new threshold will likely take effect in early 2020.
2019 Proposed Rule
Persuader Rule – Department of Labor’s Office of Labor Management Standards
2016 Final Rule: DOL issued a rule that would greatly inhibit the ability of small businesses to rely on labor experts. For nearly 50 years the DOL had recognized that legal advice is excluded from reporting under federal labor law. The 2016 rule would force lawyers and law firms that counsel a small business on most labor relations matters, and whether the business has a union or not, to disclose not only their work with that client, but also all fees and arrangements for all clients for all labor-relations services. The rule made it less likely that attorneys would take on clients seeking labor-relations counsel.
Trump Administration Review: Following a ruling against DOL in federal court, the office proposed to rescind the persuader rule in June 2017. On July 18, 2018, DOL issued a final rule rescinding the 2016 persuader rule.
Improve Tracking of Workplace Injuries and Illnesses – Occupational Safety and Health Administration
2016 Final Rule: OSHA changed its reporting system for occupational injuries and illnesses to require employers to submit data from its injury logs electronically to the agency. OSHA will then take the data and create a database – with establishment-specific information – that is available to the public. Our concerns range from the public misinterpreting the safety of businesses to unions using the information to target certain businesses for unionization.
Trump Administration Review: OSHA proposed to extend the compliance date from July 1, 2017 to December 1, 2017 in June 2017 so that it could further review the 2016 final rule. In the same notice, OSHA indicated it will review the rule and may propose changes to the 2016 final rule. On January 25, 2019 OSHA published a Final Rule amending its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from the OSHA Form 300 and OSHA Form 301.
Fiduciary Rule – DOL’s Employee Benefits Security Administration
2016 Final Rule: The DOL broadened the definition of what types of duties performed by financial advisors are fiduciary in nature – and thus subject to strict prohibitions. This includes offering a business a curated list of potential investments for a company’s retirement plan. NFIB is concerned the rule will prevent access to retirement plans for many small businesses and their employees. According to NFIB’s Research Foundation, 38 percent of small businesses offer retirement benefits to employees – up from 27 percent a decade ago.
Trump Administration Review: Under a presidential memorandum signed in February 2017, the DOL was directed to review the rule in light of its negative impacts on retirement savers. In March 2017, DOL asked for public input on the rule’s effects. In April 2017, DOL extended the applicability dates of the rule to allow for further review. Following its review, DOL allowed some parts of the rule to go into effect in June 2017 while further delaying the more controversial parts of the rule. Those parts of the rule have been delayed while DOL considers making changes. DOL has indicated it will announce a new rule by December 2019.
Section 2704 Estate, Gift, and Generation-Skipping Transfer Taxes – Internal Revenue Service
2016 Proposed Rule: The IRS proposed changes to the way it treats liquidations on an interest passed down to family members. The proposed regulations seek to eliminate or greatly reduce the discounts for lack of control and lack of marketability for “family related entities” in many or potentially all circumstances, resulting in the creation of artificial value and corresponding artificially inflated tax burden.
Trump Administration Review: Acting on an executive order signed by the president in April 2017, the IRS conducted a review of its proposed actions. It identified eight actions that should be reviewed in July 2017, including the Section 2704 proposed regulations, and requested comment from the public.
Calorie Labeling on Menus and Menu Boards – Food and Drug Administration
2014 Final Rule: The FDA finalized a rule to implement Section 4205 of the Affordable Care Act, chain retail food establishments with 20 or more locations to provide calorie information for standard menu items, including food on display and self-service food, and to provide, upon consumer request, additional written nutrition information for standard menu items. Though ostensibly targeted at large chain operations, some smaller chains face unique challenges complying with the rule.
Trump Administration Review: The FDA published an interim final rule extending the compliance date and seeking public input on how the rule could be improved to make compliance more affordable and flexible.
2017 Interim Final Rule